Citation Nr: 0419556
Decision Date: 07/20/04 Archive Date: 08/04/04
DOCKET NO. 00-09 624A ) DATE
)
MERGED APPEAL )
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to an effective date prior to December 10,
2001, for the grant of service connection for residuals of
hiatal hernia with gastroesophageal reflux disease.
2. Entitlement to an increased (compensable) initial rating
for service-connected residuals of a hiatal hernia with
gastroesophageal reflux disease.
3. Entitlement to a total compensation rating based upon
individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
Frank L. Christian, Counsel
INTRODUCTION
The veteran served on active duty in the United States Navy
from July 1964 to July 1968, including service in the
offshore waters of the Republic of Vietnam from March 1967
until November 1967.
This matter initially came before the Board of Veterans'
Appeals (Board) on appeal from a rating decision of April
2000 from the Department of Veterans Affairs (VA) Regional
Office (RO) in Cleveland, Ohio. The RO denied a rating in
excess of 60 percent for service-connected bronchial adenoma,
carcinoid type, status post left pneumonectomy, and a TDIU.
The claimant filed a timely Notice of Disagreement.
This case was previously before the Board in January 2002, at
which time the Board remanded the above-cited issues on
appeal to the RO for further development of the evidence, to
include obtaining designated private treatment records, to
afford the claimant a VA respiratory examination with
pulmonary function testing (PFT), to adjudicate the claim for
service connection for a gastrointestinal disability as
secondary to his service-connected bronchial adenoma,
carcinoid type, status post left pneumonectomy, to obtain a
medical opinion as to the impact of the claimant's service-
connected disability upon his ability to obtain and retain
substantially gainful employment; and to ensure that all
notification and development action required by the VCAA is
completed.
While the claim was thus in Remand status, a rating decision
of April 2003 granted service connection for residuals of
hiatal hernia with gastroesophageal reflux, as secondary to
service-connected bronchial adenoma, carcinoid type, status
post left pneumonectomy, evaluated as noncompensably
disabling, effective December 10, 2001.
The claimant filed a Notice of Disagreement with the
noncompensable evaluation and the effective date of December
10, 2001 assigned for the grant of service connection for
residuals of hiatal hernia with gastroesophageal reflux as
secondary to service-connected bronchial adenoma, carcinoid
type, status post left pneumonectomy. The case was returned
to the Board without the issuance of a Statement of the Case
addressing those issues, requiring the Board to again remand
the case to the RO pursuant to Manlicon v. West, 12 Vet.
App. 238 (1999).
The case was again before the Board in July 2003, at which
time the Board denied a rating in excess of 60 percent for
service-connected bronchial asthma, carcinoid type, status
post left pneumonectomy, including on an extraschedular
basis, and that issue is no longer before the Board.
Pursuant to Manlicon v. West, 12 Vet. App. 238 (1999), the
Board remanded the issues of an increased (compensable)
rating for service-connected residuals of a hiatal hernia
with gastroesohageal reflux disease, and an effective date
prior to December 10, 2001 for the grant of service
connection for residuals of hiatal hernia with
gastroesophageal reflux for issuance of a Statement of the
Case addressing those issues. Upon completion of those
actions, the RO was directed to readjudicate the issue of
entitlement to a TDIU.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC) in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
This claim must be afforded expeditious treatment by the
Veterans Benefits Administration (VBA) AMC. The law requires
that all claims that are remanded by the Board or by the
United States Court of Appeals for Veterans Claims (CAVC) for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans Benefits
Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat.
2651 (2003) (codified at 38 U.S.C. §§ 5109B, 7112).
The CAVC has held that section 5103(a), as amended by the
Veterans Claims Assistance Act of 2000 (VCAA) and § 3.159(b),
as recently amended, require VA to inform a claimant of which
evidence VA will provide and which evidence claimant is to
provide, and remanding where VA failed to do so. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 202);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002).
The RO issued VCAA notice letters to the veteran in June 2002
and September 2002, neither of which are compliant with
Quartuccio, supra, in connection with the claims presently on
appeal.
In this case, the record shows the RO provided the veteran
with general notice of the statutory and regulatory
provisions relevant to his claims in its
statement/supplemental statements of the case; however, while
he has been provided specific notice of the VCAA and this
law's requirements, he has not been informed of VA's
obligation to inform the claimant which portion of the
information and evidence, if any, is to be provided by the
claimant and which portion, if any, VA will attempt to obtain
on behalf of the claimant. See 38 U.S.C.A. § 5103 (West
2002).
The CAVC has repeatedly vacated Board decisions where the
VCAA notice sent to the claimant failed to specify who was
responsible for obtaining relevant evidence or information as
to the claims that were subject to the appealed Board
decision. See e.g. Quartuccio v. Principi, 16 Vet. App. 183,
187 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).
As the Board cannot rectify this deficiency on its own, see
Disabled American Veterans v. Secretary of Veterans Affairs,
327 F.3d 1339 (Fed. Cir. 2003), this matter must be remanded
for further development.
The Board observes that additional due process requirements
may be applicable as a result of the enactment of the VCAA
and its implementing regulations. See 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A and 5107 (West 2002) and 66 Fed. Reg.
45,620 (Aug. 29, 2001) (38 C.F.R. §§ 3.102, 3.156(a), 3.159,
and 3.326(a)).
Accordingly, the case is remanded to the VBA AMC for further
action as follows:
1. The appellant has the right to submit
additional evidence and argument on the
matter or matters the Board has remanded
to the VBA AMC. Kutscherousky v. West,
12 Vet. App. 369 (1999).
2. The VBA AMC must review the claims
file and ensure that all VCAA notice
obligations have been satisfied in
accordance with 38 U.S.C.A. §§ 5102,
5103, and 5103A (West 2002), Veterans
Benefits Act of 2003, Pub. L. 108-183
,§ 701, 117 Stat. 2651, ___ (Dec. 16,
2003) (codified at 38 U.S.C.A. § 5103),
and any other applicable legal precedent.
Such notice should specifically apprise
the appellant of the evidence and
information necessary to substantiate his
claim and inform him whether he or VA
bears the burden of producing or
obtaining that evidence or information,
and of the appropriate time limitation
within which to submit any evidence or
information. 38 U.S.C.A. § 5103(a) and
(b) (West 2002); Quartuccio v. Principi,
16 Vet. App. 183 (2002).
3. The VBA AMC should then conduct any
necessary development brought about by
the appellant's response and issue a
supplemental statement of the case, if
necessary.
Thereafter, the case should be returned to the Board for
further appellate review, if in order. By this remand, the
Board intimates no opinion as to any final outcome warranted.
No action is required of the veteran until he is notified by
the VBA AMC.
_________________________________________________
RONALD R. BOSCH
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the CAVC. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).